Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Application E389 of 2024

Kitivi & another v Musyoki & another

Court of Appeal
20 December 2024
SKS. Gatembu KairuPNP. NyamweyaLAL. Achode
1,128 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal stopped an eviction of two brothers from disputed Machakos land until their appeal is heard, protecting over thirty years of occupation.

What this practically means

#

Executive summary

#
The applicants, Mathias and James Kitivi, sought an injunction under Rule 5(2)(b) of the Court of Appeal Rules restraining their cousins, the respondents, from evicting them from land known as Machakos Town Block 3/797 pending an intended appeal. The Chief Magistrate's Court at Machakos had on 9th June 2021 declared the respondents the rightful registered owners, permanently restrained the applicants from acts on the property, and ordered demolition or removal of their structures. The applicants' first appeal to the Environment and Land Court at Machakos (Nyakuri, J.) was dismissed on 10th July 2024, and they filed a Notice of Appeal dated 26th July 2024. The applicants argued the intended appeal was arguable on constructive trust and estoppel, and that eviction would render it nugatory given their occupation of over thirty years. The respondents maintained they were registered proprietors, that the applicants were mere squatters without a counterclaim, and that the application did not meet the Kinyanjui v Ketter threshold. Applying those principles, the Court of Appeal (SG Kairu, P Nyamweya and LA Achode, JJA) found the intended appeal arguable, noting that an arguable appeal need not necessarily succeed but only deserves the court's attention. On the nugatory aspect, the court held that the purpose of the Rule 5(2)(b) discretion is to preserve the subject matter of the appeal, and, noting the respondents' inconsistent position that the applicants were squatters yet not in occupation, took the view that the applicants were in occupation and that eviction pending appeal would render a successful appeal nugatory. The court granted prayer 3, restraining eviction and demolition pending the appeal, with costs to abide the appeal's outcome. The decision below was not disturbed; this was an interlocutory ruling on preservation pending the intended appeal.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether the intended appeal will be rendered nugatory if the applicants are evicted pending its hearing and determination

Key legal issues

#
01

Whether the intended appeal is arguable

Holding

The intended appeal is arguable, not frivolous, given the contention that a constructive trust arose and the respondents are estopped from evicting the applicants.

Reasoning

The applicants contend both courts below erred in failing to find that the parties' conduct created a constructive trust and that the respondents are estopped from evicting them. Applying the Kinyanjui v Ketter principles, the court held that an arguable appeal need not necessarily succeed; it need only deserve the court's attention. The constructive trust and estoppel arguments sufficed.

p. 2
02

Whether the appeal would be rendered nugatory if eviction proceeded

Holding

Eviction of the applicants prior to determination of the appeal would render it nugatory if it succeeded, since the trial court's orders effectively amounted to eviction.

Reasoning

The purpose of Rule 5(2)(b) discretion is preservation of the appeal's subject matter. The applicants claim over thirty years' occupation; the respondents inconsistently called them squatters yet denied occupation. Given the trial court ordered demolition and removal of structures, effectively eviction, the court took the view for present purposes that the applicants are in occupation and eviction would render a successful appeal nugatory.

p. 3

Legal principles established

#
  • An arguable appeal is not one that will necessarily succeed but one that deserves the attention of the court.
  • The object of the exercise of discretion under Rule 5(2)(b) of the Court of Appeal Rules is to preserve the subject matter of the appeal.

Court orders

#
  1. 1.Prayer 3 of the application dated 30th July 2024 granted: the respondents, whether by themselves, their agents or otherwise, restrained by order of injunction from evicting the applicants from the property or from demolishing the applicants' structures on the property pending the hearing and determination of their appeal
  2. 2.Costs of the application to abide by the outcome of the appeal

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

SK
majority
PN
majority
LA
majority
On appeal from
Environment and Land Court of Kenya at Machakos
ELC Cause No. E019 of 2024
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Bearing in mind that an arguable appeal is not one that will necessarily succeed but one that deserves the attention of the court, we are persuaed that the intended appeal is not frivolous. It is indeed arguable.
p. 2Threshold of arguability under Rule 5(2)(b)
the object of the exercise of discretion under Rule 5(2)(b) of the Court of Appeal Rules is to preserve the subject matter of the appeal.
p. 2Purpose of Rule 5(2)(b) jurisdiction
Consequently, we grant prayer 3 of the application dated 30th July 2024 with the result that the respondents, whether by themselves, their agents or otherwise, are hereby restrained by order of injunction from evicting the applicants from the property or from demolishing the applicants' structures on the property pending the hearing and determination of their appeal.
p. 3Final orders - injunction pending appeal
Costs of the application shall abide by the outcome of the appeal.
p. 3Costs

Issues in the judgment

#
minor

Inconsistent case number for the decision below: caption cites ELC Cause No. E019 of 2024 while paragraph 3 refers to ELC Appeal No. E019 of 2021.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kitivi & another v Musyoki & another", Case Analysis (2024). Civil Application E389 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1942/eng@2024-12-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.